Ross v. Ortiz

March 6, 2008

ROBERT ROSS, PETITIONER,v.ALFARO ORTIZ, ET AL., RESPONDENTS.

The opinion of the court was delivered by: Bumb, District Judge

OPINION

Robert Ross filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254(a) challenging a conviction in the Superior Court of New Jersey, Atlantic County. By Order and accompanying Opinion entered September 25, 2007, this Court dismissed the Petition with prejudice as untimely and denied a certificate of appealability. By Order filed February 13, 2008, the United States Court of Appeals for the Third Circuit denied a certificate of appealability on the ground that jurists of reason could not debate that the District Court properly denied the Petition as untimely.

On January 11, 2008, Petitioner executed a notice of motion, pursuant to Rule 60(b)(1) of the Federal Rules of Civil Procedure, to vacate the Order of dismissal on the grounds of mistake and inadvertence. For the reasons expressed below and pursuant to Rule 78 of the Federal Rules of Civil Procedure, this Court will deny the motion and a certificate of appealability.

I. BACKGROUND

The Petition challenged a judgment of conviction entered in the Superior Court of New Jersey, Atlantic County, on November 20, 1998, after a jury found Petitioner guilty of causing bodily injury to a parole officer performing his duties, contrary to N.J. STAT. ANN. § 2C:12-1b(5)(a). See State v. Ross, 2006 WL 1520670 (N.J. Super., App. Div., June 5, 2006). The Law Division sentenced Petitioner to an extended 10-year term of incarceration, with a five-year period of parole ineligibility. (Id.) Petitioner appealed. In an opinion filed May 12, 2000, the Superior Court of New Jersey, Appellate Division, affirmed. (Id.) On September 8, 2000, the New Jersey Supreme Court denied certification. See State v. Ross, 165 N.J. 529 (2000) (table).

By letter dated June 30, 2003, Petitioner filed a pro se petition for post-conviction relief in the Superior Court of New Jersey, Law Division, which was amended by counsel in November 2004. See State v. Ross, 2006 WL 1520679 *1 (N.J. Super., App. Div., June 5, 2006). The Law Division denied relief on May 9, 2005. Petitioner appealed, and the Appellate Division affirmed on June 5, 2006. Id. The New Jersey Supreme Court denied certification on September 8, 2006. See State v. Ross, 188 N.J. 354 (Sept. 8, 2006) (table).

Petitioner filed his § 2254 Petition on December 11, 2006. The Petition raised two grounds:

Ground One: PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHT OF THE EFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT, WHEREFORE THE WRIT SHOULD BE GRANTED.

Ground Two: THE PROSECUTION'S WILLFUL SUPPRESSION OF OFFICER SARACENI'S MEDICAL REPORTS AND OFFICER SARACENI'S INCIDENT REPORT, DEPRIVED THE PETITIONER OF DUE PROCESS OF A FAIR TRIAL, WHEREFORE THE WRIT OF HABEAS CORPUS SHOULD BE GRANTED.

(Pet. ¶ 12 & Mem. of Law, pp. 6, 12.)

In an Opinion filed May 13, 2007, this Court explained that the face of the Petition, together with the opinion of the Superior Court of New Jersey, Appellate Division, affirming the Law Division's order denying post-conviction relief to Petitioner, see State v. Ross, 2006 WL 1520670 (N.J. Super., App. Div., June 5, 2006), show that, in the absence of equitable tolling, the statute of limitations expired on December 10, 2001, one-year after Petitioner's conviction became final by the conclusion of direct review. This Court directed Petitioner to show cause why the § 2254 Petition should not be summarily dismissed as time barred.

On April 13, 2007, Petitioner filed a Declaration in response to the Order to Show Cause, together with several documents, seeking equitable tolling on three grounds. First, Petitioner argued that the limitations period should be equitably tolled because Petitioner was unable to pursue a state petition for post-conviction relief before the one-year statute of limitations expired on December 12, 2001 (and until June 30, 2003), where Petitioner did not have "the discovery, trial transcripts, appeal brief showing the issues raised," the Appellate Division's reasons for denying his direct appeal, or access to New Jersey case law while he was incarcerated in New York. This Court ruled that, because Petitioner was able to file post-conviction relief by way of a letter dated June 30, 2003, without obtaining these items, the lack of these items could not have prevented Petitioner from seeking post-conviction relief. Thus, this Court concluded that the lack of these items was not an extraordinary circumstance warranting equitable tolling.

Second, Petitioner argued that equitable tolling was warranted because he challenged his New Jersey conviction in the wrong forum when he referenced the New Jersey conviction in a § 2254 petition challenging his New York conviction, which was filed on April 4, 2000, in the United States District Court for the Western District of New York. Noting that Petitioner had 285 days remaining on his one-year statute of limitations when Chief Judge Mukasey denied his motion to reopen the § 2254 petition challenging the New York conviction, and that Petitioner had not explained why he failed to pursue his claims during this 285-day period, this Court determined Petitioner was not entitled to equitable tolling on his second argument because he had not shown due diligence in pursuing his claims.

In his third argument, Petitioner sought equitable tolling on the ground that he was unable to file a state petition for post-conviction relief before the statute of limitations expired on December 10, 2001, because he didn't know that the New Jersey Supreme Court had denied his petition for certification on direct appeal until 2003. This Court determined that, as Petitioner knew in June 2000 that the New Jersey Supreme Court was considering whether to grant certification on his case, Petitioner's unexplained lack of diligence in inquiring about the status of his petition for over 34 months ...

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